Advocates: De Blasio marijuana plan won't end racial disparities

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Smoking marijuana in New York City will be less likely to land you behind bars this fall, but the city’s decision to police with “pink tickets” instead of handcuffs will not solve the deeper problem of racial disparities in policing the drug, advocates warn, if lessons from other American cities are any guide.

New York City Mayor Bill de Blasio announced in a press conference Tuesday that, effective September 1, more lenient marijuana enforcement is coming to New York City. Police officers who catch New Yorkers smoking marijuana publicly will receive a criminal misdemeanor summons instead of being arrested – with notable exceptions. Police have carved out a list of people they will still arrest, including those on parole or probation, those driving under the influence, and those who refuse to provide identification, among others. De Blasio estimated that 10,000 fewer people would be arrested next year under the new policy, down from 17,880 in 2017. Those who are still arrested, however, will likely skew towards non-whites, as they are more likely to fall into the relevant categories.

Marijuana policy reform advocates and some left-leaning city legislators said the change will likely accomplish its primary goal of dramatically reducing arrests, however, they cautioned that there could be unintended consequences of New York City’s new approach, including an uptick in criminal summonses issued for smoking marijuana. Ultimately, they argue, full legalization with strict regulation is the only long-term fix for a dramatic racial disparity in who is arrested for smoking marijuana. Last year, 86 percent of the people arrested in New York City for marijuana possession in the fifth degree were black or Hispanic, while 9 percent were white. New York City’s population is 43 percent white and studies have found that white people are no less likely to smoke pot.

“The unintended consequences that we’ve seen from decriminalizing and not fully legalizing is that racial disparities persist in who is stopped,” said Jolene Forman, staff attorney at the Drug Policy Alliance, a pro-legalization advocacy organization. “And the people who usually bear that type of harassment are young, male, black and brown – so, boys and young men. I would anticipate that to be the same kind of consequence here.”

In other words, the problem that de Blasio said spurred him to change the enforcement policy may persist, albeit with less severe consequences for most marijuana smokers. That said, Forman believes it’s a step in the right direction.

In states where the drug was legalized, Forman said “public consumption interaction with law enforcement” went up slightly. But because New York has not legalized marijuana, she said, “I’m guessing that total interactions with law enforcement will go down and the disparities will persist. That would be more in line with what we’ve seen with marijuana decriminalization measures.”

“What we’ve seen in Chicago and San Francisco and other places where they’ve decriminalized marijuana possession is not just that arrests are replaced by summons, but actually the number of law enforcement encounters decreased,” Forman said. “It’s not perfect, but it’s net positive.”

Drug policy advocates said that New York City is unique, having decriminalized marijuana possession in the 1970s, but having carved out an exception for when it was in public view or consumed in public. This has led to soaring marijuana arrests in the past, especially under former Mayor Michael Bloomberg, although those numbers have declined in recent years. Data showing that black and Hispanic men are far more likely to be arrested than white men, despite similar rates of marijuana use, has ratcheted up political pressure for government officials to make changes to the existing enforcement regime.

Under the new policy, New Yorkers with a clean record who are caught smoking marijuana in public will no longer be arrested, but police officials outlined a series of exceptions where police may still make an arrest. As reported by the Daily News, police will issue criminal court summonses to people found smoking marijuana, unless the person:

Has a misdemeanor or felony warrant

Is on parole or probation

Is categorized as a violent offender

If police can’t verify their identity or their address

If the person is in the driver’s seat of a car

If the office can offer a “legitimate law enforcement exception.”

Advocates criticized the use of the criminal summonses.

“What most states do is just issue a civil fine, which is still a pretty significant deterrent” said Karen O’Keefe, director of state policies at the Marijuana Policy Project. That will not be the case with New York City’s new policy.

“Not arresting people is better than arresting them,” O’Keefe said. “But if they’re still being charged with a misdemeanor then that can still have life-altering consequences,” including exclusion from public housing, the need to reveal that fact on college applications or job applications, and the increased likelihood of jail time. “It’s very, very harsh for just displaying or consuming marijuana in public.”

“Where states have continued to allow for the possibility of criminal charges they tend to be discriminatorily enforced,” O’Keefe said.

In Chicago, city officials decided to decriminalize marijuana – although law enforcement could still enforce state marijuana laws. After Chicago decriminalized the drug, researchers found that marijuana arrests actually went up, largely in black neighborhoods, instead of down. “Whenever there is wiggle room, unfortunately, it seems it's always used in a discriminatory fashion. Whether or not that’s the actual intent, that seems to be the effect of it,” said O’Keefe. Marijuana legalization in Illinois appears likely in part due to the discriminatory application of those laws, O’Keefe said.

One city lawmaker said the policy will likely further contribute to racial disparities in those arrested for smoking marijuana. In a statement, Councilman Rory Lancman, who chairs the Committee on the Justice System, called the policy a “marginal improvement” and said it “does not attempt to reduce criminal summonses at all, still allows arrests in circumstances that cannot be justified by public safety, will likely make marijuana policing even more discriminatory toward people of color, continues to expose noncitizens to deportation, and takes no steps to eliminate the collateral consequences which are in the city’s control.” Lancman added that district attorneys should use their power to choose not to prosecute further low-level marijuana arrests.

At least two DAs appear to be in agreement. During the press conference, Brooklyn District Attorney Eric Gonzales said, “My office will be out of the business of prosecuting low level marijuana offenses,” adding that he would soon announce a program for sealing past marijuana possession convictions. “We must bring a sense of fairness to the past at the same time we implement these new enforcement policies.” The Brooklyn DA stopped prosecuting low-level marijuana offenses in 2014 and Manhattan District Attorney Cy Vance previously said he would stop prosecuting marijuana possession and smoking offenses in May.

An even broader movement to completely legalize marijuana is afoot in Albany, with state health Commissioner Howard Zucker revealing on Monday that a state health report will recommend legalizing it. Meanwhile, bills in the state Assembly and state Senate are poised to make marijuana legal for adults to use statewide, although partisan gridlock in the dying moments of the session make it unlikely that those bills will pass this year.

The moves at the state and local level towards a more relaxed and welcoming posture towards marijuana could make the state motto, “Excelsior,” take on a whole new meaning. In Latin, it means “higher.”

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As founder and research director of the Empire Center for Public Policy, E.J. McMahon is a go-to expert on budget plans and policy proposals. His organization promotes greater transparency, accountability and fiscal responsibility in state government, which often puts him at odds with lawmakers and the governor. McMahon previously worked as a journalist in Albany, as an Assembly Republican staffer and a budget adviser for almost 30 years, giving him great insight into the goings-on in the Capitol.